Citation Nr: 0826306
Decision Date: 08/05/08 Archive Date: 08/13/08
DOCKET NO. 03-14 355 ) DATE
)
)
On appeal from the
Department of Veterans Affairs Regional Office in Columbia,
South Carolina
THE ISSUES
1. Entitlement to an increased disability rating for a
service-connected right hip disorder, currently evaluated 10
percent disabling.
2. Entitlement to an increased disability rating for a
service-connected left hip disorder, currently evaluated 10
percent disabling.
3. Entitlement to service connection for a bladder disorder,
claimed as secondary to a service-connected lumbar spine
disorder.
4. Entitlement to service connection for hemorrhoids.
5. Entitlement to an increased disability rating for a
service-connected lumbar spine disorder, currently evaluated
as 40 percent disabling.
6. Entitlement to service connection for spina bifida.
REPRESENTATION
Veteran represented by: The American Legion
WITNESS AT HEARING ON APPEAL
The veteran
ATTORNEY FOR THE BOARD
S. Bush, Counsel
INTRODUCTION
This matter comes before the Board of Veterans' Appeals
(Board) on appeal from rating decisions issued by the
Department of Veterans Affairs (VA) Regional Office (RO) in
Columbia, South Carolina.
Procedural history
The veteran served on active duty in the United States Air
Force from January 1979 to April 1987.
Service connection for a lumbar spine disorder was granted in
a November 1987 rating decision.
The veteran filed a claim for an increased disability rating
for his service-connected lumbar spine disability in February
2002. In a June 2002 rating action, the RO continued the
service-connected lumbar spine disorder at 40 percent
disabling.
In a November 2002 RO rating decision, service connection for
a bilateral hip disorder was granted; each hip was assigned a
separate 10 percent disability rating,
The veteran's appeal was perfected with the submission of the
veteran's substantive appeal (VA Form 9) in April 2003.
In an August 2003 rating decision, the RO denied the
veteran's claims of entitlement to service connection for
hemorrhoids, spina bifida and a bowel disorder. The veteran
perfected an appeal as to that decision.
In December 2004 the veteran presented sworn testimony during
a personal hearing in Washington, D.C. which was chaired by
the undersigned Veterans Law Judge.
A transcript of that hearing has been associated with the
veteran's VA claims folder. In connection with the hearing,
the veteran submitted additional evidence directly to the
Board along with a written waiver of consideration of such
evidence by the agency of original jurisdiction. See 38
C.F.R. § 20.1304 (2007); see also the December 2004 hearing
transcript, page 2.
This case was remanded by the Board in March 2005 for
additional evidentiary and procedural development. This was
accomplished [with the exception of the requested development
of the spine claims, which will be detailed further in the
REMAND portion below], and in March 2008 the VA Appeals
Management Center (AMC) issued a supplemental statement of
the case(SSOC) which continued to deny the veteran's claims.
The veteran's claims folder has been returned to the Board
for further appellate proceedings.
Remanded issues
The issues of entitlement to an increased disability rating
for the service-connected lumbar spine disorder and
entitlement to service connection for spina bifida are
addressed in the REMAND portion of the decision below and are
REMANDED to the RO via the AMC.
Issues not on appeal
On March 16, 2005, the Board issued a decision which:
assigned an earlier effective date for the grant of service
connection for the right and left hip disorders; increased
the rating assigned for the veteran's service-connected
erectile dysfunction to 20 percent disabling, denied special
monthly compensation based on the need of aid and attendance
or housebound status; denied special monthly compensation for
loss of use of a creative organ; denied service connection
for a eye disorder and a bowel disorder; and determined that
new and material evidence sufficient to reopen a previously-
denied claim of entitlement to service connection for a right
elbow disorder had not been received.
On July 20, 2005, the veteran moved to have the Board
reconsider its March 2005 decision. See 38 U.S.C.A. § 7103;
38 C.F.R. § 20.1000 et seq. A Deputy Vice Chairman of the
Board denied the motion for reconsideration on October 19,
2005. The veteran appealed to the United States Court of
Appeals for Veterans Claims (the Court) on February 17, 2006.
The Court dismissed the veteran's appeal for lack of
jurisdiction in May 2006. See 38 U.S.C.A. § 7266(a) (West
2002). The veteran filed a second appeal of the October 2005
Board denial of his motion for reconsideration in February
2007. The Court again dismissed the appeal for lack of
jurisdiction via a September 2007 Order.
FINDINGS OF FACT
1. The medical and other evidence of record indicates that
the veteran's service-connected right hip disability is
manifested by pain. The veteran denied any right hip
problems whatsoever during a January 2008 VA examination.
2. The medical and other evidence of record indicates that
the veteran's service-connected left hip disability is
manifested by pain and some limitation of motion. The
measured range of left thigh flexion during a January 2008 VA
examination was 60 degrees.
3. The competent medical evidence of record does not support
a finding that a bladder disorder currently exists.
4. The competent medical evidence of record does not
indicate that a nexus exists between the veteran's diagnosed
hemorrhoids and his military service.
CONCLUSIONS OF LAW
1. The criteria for an increased disability rating for the
service-connected right hip disorder are not met. 38
U.S.C.A. § 1155 (West 2002); 38 C.F.R. § 4.71a, Diagnostic
Code 5252 (2007).
2. The criteria for an increased disability rating for the
service-connected left hip disorder are not met. 38 U.S.C.A.
§ 1155 (West 2002); 38 C.F.R. § 4.71a, Diagnostic Code 5252
(2007).
3. A bladder disorder is not proximately due to nor is the
result of the veteran's service-connected lumbar spine
disorder. 38 C.F.R. §3.310 (2007).
4. Hemorrhoids were not incurred in or aggravated by the
veteran's active service. 38 U.S.C.A. § 1131 (West 2002); 38
C.F.R. § 3.303 (2007).
REASONS AND BASES FOR FINDINGS AND CONCLUSIONS
The veteran seeks an increased disability rating for his
service-connected lumbar spine disorder, which is currently
evaluated 40 percent disabling, as well as his service-
connected right and left hip disorders, which are currently
each evaluated
10 percent disabling. He also seeks secondary service
connection for a bladder disorder and direct service
connection for hemorrhoids.
As is discussed elsewhere in this decision, the remaining two
issues on appeal, entitlement to an increased disability
rating for the service-connected lumbar spine disability and
service connection for spina bifida, are being remanded for
additional evidentiary development.
In the interest of clarity, the Board will first discuss
certain preliminary matters. The Board will then render a
decision.
Stegall considerations
As was alluded to in the Introduction, the Board remanded
this case in March 2005. In essence, the Board instructed
the agency of original jurisdiction (AOJ) to provide
additional notice pursuant to the Veterans Claims Assistance
Act of 2000 (VCAA), obtain outpatient treatment records from
the VA Medical Center (VAMC) in Philadelphia and provide the
veteran with VA examinations and medical opinions with
respect to the bilateral hip and hemorrhoid claims. The AOJ
was then to readjudicate the claims.
In March 2006, the AMC sent the veteran a VCAA letter
complying with the Board's remand instructions. Records from
the Philadelphia VAMC have been associated with the claims
folder. Additionally, a VA examination was obtained in
conformity with the Board's remand instructions in January
2008, to include the requested medical opinions. The AMC
subsequently readjudicated the claims in the March 2008 SSOC.
Thus, all of the Board's remand instructions have now been
complied with as to the four issues which are being
adjudicated in this decision. See Stegall v. West, 11 Vet.
App. 268, 271 (1998) [where the remand orders of the Board
are not complied with, the Board errs as a matter of law when
it fails to ensure compliance].
The VCAA
The Board has given consideration to the VCAA, which includes
an enhanced duty on the part of VA to notify a claimant as to
the information and evidence necessary to substantiate claims
for VA benefits. The VCAA also redefines the obligations of
VA with respect to its statutory duty to assist claimants in
the development of their claims. See 38 U.S.C.A. §§ 5103,
5103A (West 2002).
The Board has carefully considered the provisions of the VCAA
and the implementing regulations in light of the record on
appeal, and for reasons expressed immediately below finds
that the development of the issues has proceeded in
accordance with the provisions of the law and regulations.
Standard of review
In general, after the evidence has been assembled, it is the
Board's responsibility to evaluate the entire record. See 38
U.S.C.A. § 7104(a) (West 2002). When there is an approximate
balance of evidence regarding the merits of an issue material
to the determination of the matter, the benefit of the doubt
in resolving each such issue shall be given to the claimant.
See 38 U.S.C.A. § 5107 (West 2002); 38 C.F.R. §§ 3.102, 4.3
(2007).
In Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990), the Court
stated that "a veteran need only demonstrate that there is
an 'approximate balance of positive and negative evidence' in
order to prevail." To deny a claim on its merits, the
preponderance of the evidence must be against the claim. See
Alemany v. Brown, 9 Vet. App. 518, 519 (1996), citing
Gilbert, 1 Vet. App. at 54.
Notice
The VCAA requires VA to notify the claimant and the
claimant's representative, if any, of any information and any
medical or lay evidence not previously provided to VA that is
necessary to substantiate the claims. As part of the notice,
VA is to specifically inform the claimant and the claimant's
representative, if any, of which portion, if any, of the
evidence is to be provided by the claimant and which part, if
any, VA will attempt to obtain on behalf of the claimant.
See 38 U.S.C.A. § 5103 (West 2002); see also Quartuccio v.
Principi, 16 Vet. App. 183 (2002) [a letter from VA to an
appellant describing evidence potentially helpful to the
appellant but not mentioning who is responsible for obtaining
such evidence did not meet the standard erected by the VCAA].
After having carefully reviewed the record, the Board has
concluded that the notice requirements of the VCAA have been
satisfied with respect to the issues on appeal.
The veteran was informed of the relevant law and regulations
pertaining to his increased rating claims in a letter from
the AMC dated March 31, 2006.
The veteran was specifically informed, in a section entitled
"What the Evidence Must Show," that in order to established
entitlement to an increased disability rating the evidence
must demonstrate "that your service-connected disability has
gotten worse." With respect to the veteran's service
connection claim, the March 2006 letter informed the veteran
that in order to establish service connection the evidence
must demonstrate "a relationship between your current
disability and an injury, disease, or event in military
service."
Although the March 2006 letter informed the veteran what was
needed to establish service connection on a direct basis, it
did not include a discussion of what was needed to establish
service connection on a secondary basis. However, the Board
finds that the veteran demonstrated actual knowledge of what
was necessary to establish service connection on a secondary
basis during his personal hearing before the undersigned.
See the December 2004 hearing transcript, pages 18, 21; see
also Simmons v. Nicholson, 487 F.3d 892 (Fed. Cir. 2007);
Sanders v. Nicholson, 487 F.3d 881 (Fed. Cir. 2007). As
such, the Board concludes that any deficiencies have not
affected the essential fairness of the adjudication. See
Mayfield v. Nicholson, 20 Vet. App. 537 (2006).
Crucially, the veteran was generally informed of VA's duty to
assist him in the development of his claims and advised of
the provisions relating to the VCAA in the above-referenced
March 2006 letter. [The Board acknowledges that the record
contains prior-dated VCAA letters; however such do provide
adequate VCAA notice and will be addressed no further
herein]. Specifically, the veteran was advised in the letter
that VA is responsible for obtaining records from any Federal
agency, to include military records, outpatient records from
VA treatment facilities and records from the Social Security
Administration. The March 2006 VCAA letter further indicated
that a VA examination would be scheduled if necessary to
adjudicate his claims. With respect to private treatment
records, the letter informed the veteran that VA would make
reasonable efforts to obtain relevant private records.
Copies of VA Form 21- 4142, Authorization and Consent to
Release Information, were included with the letter, and the
veteran was asked to complete this release for each private
healthcare provider so that VA could obtain these records on
his behalf.
The March 2006 letter further emphasized: "If the evidence
is not in your possession, you must give us enough
information about your records so that we can request them
from the person or agency that has them. If the holder of
the records declines to give us the records or asks for a fee
to provide them, we'll notify you of the problem. It is your
responsibility to make sure that we receive all requested
records that are not in the possession of a Federal
department or agency" [Emphasis as in the original letter].
The March 2006 VCAA letter also specifically requested of the
veteran: "If you have any additional information or evidence
or information that you think will support your claim[s],
please let us know. If you have any evidence in your
possession that pertains to your claim[s], please send it to
us." This request complies with the "give us everything
you've got" requirement contained in 38 C.F.R. § 3.159 (b)
in that the RO informed the veteran that he could submit or
identify evidence other than what was specifically requested
by the RO.
[The Board notes that 38 C.F.R. § 3.159 was revised,
effective May 30, 2008. See 73 Fed. Reg. 23353-56 (Apr. 30,
2008). The amendments apply to applications for benefits
pending before VA on, or filed after, May 30, 2008. The
amendments, among other things, removed the notice provision
requiring VA to request the veteran to provide any evidence
in the veteran's possession that pertains to the claim. See
38 C.F.R. § 3.159(b)(1).]
The veteran was not provided complete notice of the VCAA
prior to the initial adjudication of his claims in June 2002,
November 2002 and August 2003. The Board is of course aware
of the Court's decision in Pelegrini v. Principi, 17 Vet.
App. 412 (2004), which appears to stand for the proposition
that VCAA notice must be sent prior to adjudication of an
issue by the RO. Crucially, the veteran was provided with
VCAA notice through the March 2006 VCAA letter, and his
claims were readjudicated in the March 2008 SSOC, after he
was provided with the opportunity to submit evidence and
argument in support of his claims and to respond to the VA
notice. Thus, any VCAA notice deficiency has been rectified,
and there is no prejudice to the veteran in proceeding to
consider his claims on the merits. The veteran has pointed
to no prejudice resulting from the timing of the VCAA notice.
Finally, there have been two significant Court decisions
concerning the VCAA.
In the first, Dingess v. Nicholson, 19 Vet. App. 473 (2006),
the Court observed that a claim of entitlement to service
connection consists of five elements: (1) veteran status;
(2) existence of a disability; (3) a connection between the
veteran's service and the disability; (4) degree of
disability; and (5) effective date. Because a claim is
comprised of five elements, the notice requirements of
section 5103(a) apply generally to all five elements of that
claim. Therefore, upon receipt of an application for a
service connection claim, section 5103(a) and section
3.159(b) require VA to review the information and the
evidence presented with the claim and to provide the claimant
with notice of what information and evidence not previously
provided, if any, will assist in substantiating or is
necessary to substantiate the elements of the claim. This
includes notice that a disability rating and an effective
date for the award of benefits will be assigned if service
connection is awarded.
In this case, element (1), veteran status, is not at issue.
The service connection claims were denied based upon elements
(2), existence of a disability and (3), a connection between
the veteran's service and the disability. As was discussed
above, the veteran received specific notice of these
elements. In addition, the veteran received notice as to
elements (4) and (5), degree of disability and effective date
via the March 2006 VCAA letter. Moreover, because the
veteran's claims are being denied, elements (4) and (5) are
moot.
The Board has also considered the Court's recent decision in
Vazquez-Flores v. Peake, 22 Vet. App. 37 (2008), which held
that for an increased-compensation claim, section § 5103(a)
requires, at a minimum, that VA notify the claimant that, to
substantiate a claim, the claimant must provide, or ask VA to
obtain, medical or lay evidence demonstrating a worsening or
increase in severity of the disability and the effect that
worsening has on the claimant's employment and daily life.
Additionally, the claimant must be notified that, should an
increase in disability be found, a disability rating will be
determined by applying relevant Diagnostic Codes, which
typically provide for a range in severity of a particular
disability from noncompensable to as much as 100 percent
(depending on the disability involved), based on the nature
of the symptoms of the condition for which disability
compensation is being sought, their severity and duration,
and their impact upon employment and daily life.
The notice must also provide examples of the types of medical
and lay evidence that the claimant may submit (or ask VA to
obtain) that are relevant to establishing entitlement to
increased compensation, e.g., competent lay statements
describing symptoms, medical and hospitalization records,
medical statements, employer statements, job application
rejections, and any other evidence showing an increase in the
disability or exceptional circumstances relating to the
disability.
See Vazquez-Flores at 43-44.
The Board observes that the veteran was not informed of the
relevant law and regulations pertaining to his claims to
include as contemplated in the recent Dingess and Vazquez
decisions. However, the essential fairness of the
adjudication was not affected because the veteran had actual
knowledge of what was necessary to substantiate his claims.
See Sanders, supra. The veteran has submitted argument which
specifically listed referenced Diagnostic Codes and the
rating criteria pertinent to his bilateral hip disorders, and
made specific argument as to how these disabilities had
increased in severity and the effect that increase had on the
veteran's employment and daily life. See, e.g., the July 5,
2002 and December 2, 2002 notices of disagreement; see also
the April 4, 2003 submission.
Moreover, both the veteran and his representative discussed
the reasons the veteran met the evidentiary burdens necessary
to allow for the grant of his claims during the December 2004
hearing. It is therefore clear that the veteran was or
should have been aware of the applicable schedular
standards.
Accordingly, due to the content of the notice given and the
veteran's actual knowledge, the Board finds that the veteran
has received appropriate VCAA notice to include as
contemplated by the Court in Dingess and Vazquez-Flores.
In any event, the Board notes that with respect to appeals of
initially assigned disability ratings for the service-
connected bilateral hip disorders, the additional notice
requirements recently set forth in Vazquez-Flores do not
apply. Specifically, once service connection has been
granted, VA's VCAA notice obligations are fully satisfied and
any defect in the notice is not prejudicial. See Hartman v.
Nicholson, 483 F.3d 1311 (Fed. Cir. 2007); Dunlap v.
Nicholson, 21 Vet. App. 112 (2007); see also Goodwin v.
Peake, No. 05-876 (U.S. Vet. App. May 19, 2008) [where a
claim has been substantiated after the enactment of the VCAA,
the appellant bears the burden of demonstrating any prejudice
from defective VCAA notice with respect to any downstream
elements].
The Board further notes that neither the veteran or his
representative has alleged that the veteran has received
inadequate VCAA notice. The veteran is obviously aware of
what is required of him and of VA. Because there is no
indication that there exists any evidence which could be
obtained which would have an effect on the outcome of this
case, no further VCAA notice is necessary. See Dela Cruz v.
Principi, 15 Vet. App. 143, 149 (2001) [VCAA notice not
required where there is no reasonable possibility that
additional development will aid the veteran].
Duty to assist
In general, the VCAA provides that VA shall make reasonable
efforts to assist a claimant in obtaining evidence necessary
to substantiate a claim for VA benefits, unless no reasonable
possibility exists that such assistance would aid in
substantiating the claims. The law provides that the
assistance provided by VA shall include providing a medical
examination or obtaining a medical opinion when such an
examination or opinion is necessary to make a decision on the
claims.
See 38 U.S.C.A. § 5103A (West 2002); 38 C.F.R. § 3.159
(2007).
In the instant case, the Board finds that reasonable efforts
have been made to assist the veteran in obtaining evidence
necessary to substantiate his claims, and that there is no
reasonable possibility that further assistance would aid in
substantiating them. In particular, reports of VA and
private treatment of the veteran have been associated with
the claims folder. Additionally, the veteran was afforded VA
examinations in September 2002, August 2003 and January 2008.
The Board additionally observes that all appropriate due
process concerns have been satisfied. See 38 C.F.R. § 3.103
(2007). The veteran has been accorded the opportunity to
present evidence and argument in support of his claims. He
has been ably represented by his service organization. As
noted in the Introduction, he testified at a personal hearing
which was chaired by the undersigned in December 2004.
Accordingly, the Board will proceed to a decision.
(CONTINUED ON NEXT PAGE)
1. Entitlement to an increased disability rating for a
service-connected right hip disorder, currently evaluated as
10 percent disabling.
2. Entitlement to an increased disability rating for a
service-connected left hip disorder, currently evaluated as
10 percent disabling.
Because these issues involve the application of identical law
to virtually identical facts, the Board will address them
together.
Relevant law and regulations
Disability ratings - in general
Disability ratings are assigned in accordance with the VA's
Schedule for Rating Disabilities and are intended to
represent the average impairment of earning capacity
resulting from disability. See 38 U.S.C.A. § 1155 (West
2002);
38 C.F.R. §§ 3.321(a), 4.1 (2007). Separate diagnostic codes
identify the various disabilities. See 38 C.F.R. Part 4.
Assignment of diagnostic code
The veteran's bilateral hip disabilities, which have been
consistently diagnosed as ankylosing spondylitis, are
currently rated 10 percent disabling by analogy to Diagnostic
Code 5252. See 38 C.F.R. § 4.20 (2007) [when an unlisted
condition is encountered it will be permissible to rate it
under a closely related disease or injury, in which not only
the functions affected, but the anatomical localization and
symptomatology are closely analogous].
The assignment of a particular Diagnostic Code is
"completely dependent on the facts of a particular case."
See Butts v. Brown, 5 Vet. App. 532, 538 (1993).
One Diagnostic Code may be more appropriate than another
based on such factors as an individual's relevant medical
history, the current diagnosis, and demonstrated
symptomatology. Any change in Diagnostic Code by a VA
adjudicator must be specifically explained. See Pernorio v.
Derwinski, 2 Vet. App. 625, 629 (1992).
In this case, the Board has considered whether another rating
code is "more appropriate" than the ones used by the RO.
See Tedeschi v. Brown, 7 Vet. App. 411, 414 (1995).
The veteran is already in receipt of 10 percent disability
ratings. Under such circumstances, rating the hips under
Diagnostic Code 5251 [limitation of extension of thigh] would
not provide for a higher rating.
As for Diagnostic Code 5253 [thigh, impairment of],
pertaining to limitation of rotation, the report of the
January 2008 VA examination shows that rotation in the left
hip was limited to at most 35 degrees and limitation of
motion with respect to the right hip was specifically denied
by the veteran; additionally left hip adduction was to 25
degrees. The report of the September 2002 VA examination
reveals that rotation of the hips was limited to 20 degrees
bilaterally both internally and externally. The (at worst)
slight limitation of rotation of the hips to 20 degrees and
limitation of left hip adduction to 25 degrees would not even
warrant the assignment of 10 percent ratings under
Diagnostic Code 5253.
The veteran has highlighted Diagnostic Code 5250 pertaining
to ankylosis of the hips. See the veteran's April 4, 2003
submission. However, there is no indication of ankylosis per
the January 2008 VA examination report or anywhere else in
the medical records. Ankylosis is the immobility and
consolidation of a joint due to disease, injury or surgical
procedure. See Lewis v. Derwinski, 3 Vet. App. 259 (1992)
[citing Saunders Encyclopedia and Dictionary of Medicine,
Nursing, and Allied Health at 68 (4th ed. 1987)]. The
veteran clearly can move his hips.
Finally, there is no evidence of flail joint or of any other
symptomatology which would warrant consideration of the
assignment of another diagnostic code.
In short, the Board concludes that continuing to rate the hip
disabilities under Diagnostic Code 5252 is most appropriate
in this case.
Specific rating criteria
Under Diagnostic Code 5252, flexion of the thigh limited to
45 degrees warrants a 10 percent disability rating, while
flexion to 30 degrees warrants a 20 percent disability
rating. Flexion of the thigh to 20 degrees warrants a 30
percent disability rating, while flexion of the thigh limited
to 10 degrees warrants a 40 percent disability rating. See
38 C.F.R. § 4.71a, Diagnostic Code 5252 (2007).
Normal range of motion for the hip is defined as follows:
flexion to 125 degrees, extension to zero degrees, and
abduction to 45 degrees. See 38 C.F.R. § 4.71, Plate II
(2007).
The provisions of 38 C.F.R. § 4.31 indicate that in every
instance where the minimum schedular evaluation requires
residuals and the schedule does not provide for a zero
percent evaluation, a zero percent evaluation will be
assigned when the required symptomatology is not shown. See
38 C.F.R. § 4.31 (2007).
Rating musculoskeletal disabilities
The evaluation of a service-connected disability involving a
joint rated on limitation of motion requires adequate
consideration of functional loss due to pain under 38 C.F.R.
§ 4.40 and functional loss due to weakness, fatigability,
incoordination or pain on movement of a joint under 38 C.F.R.
§ 4.45. See DeLuca v. Brown, 8 Vet. App. 202 (1995).
Analysis
Schedular rating
To warrant the next higher a 30 percent rating under
Diagnostic Code 5252, the veteran must show flexion of the
thigh limited to 30 degrees. During the January 2008 VA
examination, the veteran was able achieve flexion to 60
degrees and, based on the veteran's report of absolutely no
problems with his right hip, full range of flexion in the
right thigh.
The remaining objective evidence of record does not
demonstrate loss of thigh flexion to allow for an increased
disability rating. Specifically, left thigh flexion was
measured to 120 degrees during a June 1987 VA examination. A
December 1987 outpatient record from the VAMC in Philadelphia
shows left hip "flexors" 4/5 on the left [which computes to
an ability to achieve 80 percent, or 100 degrees, flexion]
and 5/5 on the right; "extensors," "abductors" and
"adductions" were 5/5 bilaterally. During VA examination
in November 1995, the veteran's hip flexors were 5/5
bilaterally.
The Board notes that the veteran has recently asserted that
he "never informed the [January 2008 VA examiner] that I
never had a right hip problem." See the veteran's undated
statement received at the RO in June 2008, page 5. The
question before the Board, however, is not whether the
veteran has had right hip problems in the past. Service
connection would not have been granted without past evidence
of a right hip problem. The question before the Board is
whether a right hip disability currently exists and if so
what is its severity. When considering the veteran's current
right hip disability picture, the recent medical evidence is
completely negative for right hip symptomatology other than
the veteran's subjective complaints of pain. There is simply
no evidence of loss of right thigh flexion to allow for award
of the benefit sought on appeal.
Based on the objective medical record, and for reasons stated
above, the Board finds that the veteran is not entitled to
disability ratings in excess of 10 percent under Diagnostic
Codes 5252 for the right and left hip disorders.
DeLuca considerations
In evaluating the veteran's increased rating claims, the
Board must also address the provisions of 38 C.F.R. §§ 4.40
and 4.45 (2007). See DeLuca, supra.
The veteran has complained in of severe pain in the bilateral
hips, and has described to the VA examiners as well as to the
undersigned how his left hip pain causes him substantial
functional loss. See, e.g., the December 2004 hearing
transcript, page 4. However, it appears the current 10
percent ratings were awarded to account for the veteran's
subjective complaints of bilateral hip pain, since there is
no objective medical evidence which would otherwise warrant
the assignment of compensable ratings for either hip
disability.
In any event, there is no objective medical evidence that
such symptomatology warrants the assignment of additional
disability under the schedular criteria.
It is clear from the reports of the January 2008 VA
examination that there was "no pain on range of motion or
flare-ups." Moreover, the same VA examination report does
not suggest any evidence of fatigability, incoordination and
the like which would allow for the assignment of additional
disability under 38 C.F.R. §§ 4.40 and 4.45.
Under the current schedular criteria, as explained above, a
higher schedular rating is not available in the absence left
thigh flexion limited to 30 degrees or less. The above-cited
evidence is in no way suggestive of any loss of function
which amounts to a restriction of flexion of the right or
left thigh.
To the extent that the veteran is contending that he
experiences severe hip pain, his statements are outweighed by
the objective medical reports in the record. Moreover, there
is little if any evidence of flare-ups of hip pain in the
outpatient treatment reports. See Forshey v. West, 12 Vet.
App. 71, 74 (1998), aff'd sub nom. Forshey v. Principi, 284
F.3d 1335, 1358 (Fed. Cir. 2002) [the definition of evidence
encompasses "negative evidence" which tends to disprove the
existence of an alleged fact, i.e., the lack of evidence is
itself evidence]; see also 38 U.S.C.A. § 5107(a) [it is the
claimant's responsibility to support a claim for VA
benefits].
Thus, there is no basis on which to assign a higher level of
disability based on 38 C.F.R. §§ 4.40 and 4.45.
Fenderson considerations
The Court has held that an appeal from an initial rating is a
separate and distinct claim from a claim for an increased
rating. At the time of an initial rating, separate ratings
can be assigned for separate periods of time based on facts
found, a practice known as "staged ratings." See Fenderson
v. West, 12 Vet. App. 119, 126 (1999).
In this case, the medical evidence of record appears to
support the proposition that the veteran's service-connected
bilateral hip disabilities have not changed appreciably since
the veteran filed his claim. There appear to have been no
medical findings and no other evidence which would allow for
the assignment of increased disability ratings at any time
during the period of time here under consideration.
The veteran has pointed to none Based on the record, the
Board finds that 10 percent disability ratings were properly
assigned for the entire period from the date of service
connection, April 29, 1987. Staged ratings are not
appropriate.
Extraschedular rating considerations
The Board notes in passing that the veteran has not in
connection with this appeal indicated, nor presented evidence
to support the premise, that his service-connected hip
disabilities result in marked interference with employment or
frequent periods of hospitalization as to render
impracticable the application of the regular schedular
standards. See 38 C.F.R. § 3.321(b) (2007) [extraschedular
rating criteria]. Accordingly, in the absence of the matter
being raised by the veteran or adjudicated by the RO, the
Board will not address the veteran's entitlement to an
extraschedular rating. See Floyd v. Brown, 9 Vet. App. 88,
95 (1996) [the Board cannot make a determination as to an
extraschedular evaluation in the first instance]; see also
Bernard v. Brown, 4 Vet. App. 384 (1993).
Conclusion
In summary, for the reasons and bases expressed above, the
Board concludes that a preponderance of the evidence is
against the veteran's claims of entitlement to increased
ratings for his service-connected right and left hip
disorders. The benefits sought on appeal are accordingly
denied.
3. Entitlement to service connection for a bladder disorder,
claimed as secondary to a service-connected lumbar spine
disorder.
The veteran seeks service connection for a bladder disorder,
which he contends is related to his service-connected lumbar
spine disability.
The Board initially notes that the veteran has not claimed
that his bladder condition is a direct result of his military
service. Instead, he contends that the claimed condition is
secondary to his service-connected lumbar spine disorder.
See, e.g., the October 2004 hearing transcript, page 21. The
Court in Robinson v. Mansfield, 21 Vet. App. 545 (2008) found
that where neither the veteran nor the record raises the
theory of entitlement to service connection on a direct
basis, the Board need not sua sponte consider and discuss
that theory. So it is in this case. Direct service
connection will be discussed no further herein.
Relevant law and regulations
Service connection may be granted for a disability that is
proximately due to, the result of, or aggravated by a
service-connected disability. 38 C.F.R. § 3.310(a) (2007);
see also Harder v. Brown, 5 Vet. App. 183, 187 (1993).
Additional disability resulting from the aggravation of a
non-service-connected condition by a service-connected
condition is also compensable under 38 C.F.R. § 3.310(a).
See Allen v. Brown, 7 Vet. App. 439, 448 (1995).
In order to establish service connection for a claimed
disability on a secondary basis, there must be (1) medical
evidence of a current disability; (2) a service-connected
disability; and (3) medical evidence of a nexus between the
service-connected disease or injury and the current
disability. See Wallin v. West, 11 Vet. App. 509, 512
(1998).
Essential to the award of service connection is the first
Wallin element, existence of a disability. Without it,
service connection cannot be granted. See Brammer v.
Derwinski, 3 Vet. App. 233, 225 (1992) [noting that service
connection presupposes a current diagnosis of the claimed
disability]; see also Chelte v. Brown, 10 Vet. App. 268
(1997) [observing that a "current disability" means a
disability shown by competent medical evidence to exist at
the time of the award of service connection].
Analysis
As noted above, in order to establish service connection for
a claimed disability on a secondary basis, there must be (1)
medical evidence of a current disability;
(2) a service-connected disability; and (3) medical evidence
of a nexus between the service-connected disease or injury
and the current disability. See Wallin, supra.
With respect to Wallin element (1), medical evidence of a
current disability, the July and August 2003 VA examiners
noted "urinary frequency." However, symptoms alone,
without a diagnosed or identifiable underlying malady or
condition, does not in and of itself constitute a disability
for which service connection may be granted. See Sanchez-
Benitez v. West, 13 Vet. App. 282, 285 (1999).
There is in fact no competent medical evidence of a bladder
disorder to be found anywhere in the record. To the extent
that the veteran himself contends that he has a bladder
disorder, it is now well-established that lay persons without
medical training, such as the veteran, are not competent to
comment on medical matters such as diagnosis. See Espiritu
v. Derwinski, 2 Vet. App. 491, 494-5 (1992) see also 38
C.F.R. § 3.159 (a)(1) [competent medical evidence means
evidence provided by a person who is qualified through
education, training, or experience to offer medical
diagnoses, statements, or opinions]. Accordingly, the
veteran's own statements offered in support of his bladder
claim are not competent medical evidence and do not serve to
establish the existence of a current disability.
In the absence of any currently diagnosed bladder disorder,
service connection may not be granted. See Degmetich v.
Brown, 104 F.3d 1328 (Fed. Cir. 1997); Gilpin v. Brown, 155
F.3d 1353 (Fed. Cir. 1998) [service connection cannot be
granted if the claimed disability does not exist].
For the sake of completeness, the Board will also briefly
address the remaining two Wallin elements, service-connected
disability and medical nexus. See Luallen v. Brown, 8 Vet.
App. 92, 95-6 (1995), citing Holbrook v. Brown, 8 Vet. App.
91, 92 (1995) [the Board has the fundamental authority to
decide in the alternative].
With respect to element (2), it is undisputed that there is a
service-connected lumbar spine disability.
Turning to element (3), medical nexus, the July 2003 VA
examiner stated that the veteran's urinary frequency " is
not considered secondary to any lumbar spine condition" The
August 2003 VA examiner noted that the veteran's urinary
problems were "less likely" to be a result of his back
injury as opposed to enlargement of his prostate.
There is no competent medical evidence to the contrary. The
veteran himself is not competent to render a medical nexus
opinion. See Espiritu, supra.
Conclusion
In summary, Wallin elements (1) and (3) are not met. A
preponderance of the evidence is against the veteran's claim,
and the benefit sought on appeal is therefore denied.
4. Entitlement to service connection for hemorrhoids.
The veteran seeks service connection for hemorrhoids as being
directly due to his military service.
Relevant law and regulations
In general, service connection may be granted for disability
or injury incurred in or aggravated by active military
service. 38 U.S.C.A. § 1131 (West 2002);
38 C.F.R. § 3.303 (2007).
In order to establish service connection for the claimed
disorder, there must be (1) medical evidence of a current
disability; (2) medical, or in certain circumstances, lay
evidence of in-service incurrence or aggravation of a disease
or injury; and (3) medical evidence of a nexus between the
claimed in-service disease or injury and the current
disability. See Hickson v. West, 12 Vet. App. 247, 253
(1999).
Analysis
With respect to Hickson element (1), the veteran has a
current diagnosis of hemorrhoids per the January 2008 VA
examination report and VA outpatient records dated in
December 1999, November 2002 and August 2004.
Concerning Hickson element (2), in-service disease or injury,
the veteran's service medical records note a diagnosis of
"thrombosed hemorrhoid, resolving" in October 1982.
Hickson element (2) is therefore satisfied.
With respect to crucial Hickson element (3), medical nexus,
however, the claim fails. The record contains the January
2008 VA medical examination report, in which the examiner
found that:
As regards to his henmorroids, I see a
single entry in his service medical
records about this issue and that was in
10/1982. There is no further indication
that he sought medical attention. No
further indication that he had any
problems from the hemorrhoids while in
the service and in fact I do not see any
indication of him seeking medical
attention from the VA until 1991 which is
nine years later. It is therefore my
impression that the hemorrhoids are not
related to his single episode of
hemorrhoids in service.
The Board assigns this medical opinion great probative
weight. It was provided by a medical professional who
actually examined the veteran, as well as reviewed his VA
claims folder. Moreover, the opinion is congruent with the
veteran's medical history, which was pertinently negative for
hemorrhoids for many years after service.
There is no evidence to the contrary. To the extent that the
veteran, other laypersons such as his cousin (see the
February 21, 2008 statement from the veteran's cousin W.P.)
and his representative contend that his current hemorrhoids
are related to his military service, it is now well
established that as lay persons without medical training,
they are not competent to comment on medical matters such as
date of onset or cause of a disability, or in the
representative's case how medical professionals should weigh
medical evidence in rendering opinions. See Espiritu, supra.
The statements of the veteran, his cousin and his
representative offered in support of his claim are not
competent medical evidence and do not serve to establish a
medical nexus.
Conclusion
In summary, Hickson element (3) is not met. A preponderance
of the evidence is against the veteran's claim, and the
benefit sought on appeal is denied.
ORDER
Entitlement to an increased disability rating for the
service-connected right hip disorder is denied.
Entitlement to an increased disability rating for the
service-connected left hip disorder is denied.
Entitlement to service connection for a bladder disorder,
claimed as secondary to a service-connected lumbar spine
disorder, is denied.
Entitlement to service connection for hemorrhoids is denied.
REMAND
5. Entitlement to an increased disability rating for a
service-connected lumbar spine disorder, currently evaluated
40 percent disabling.
6. Entitlement to service connection for spina bifida.
As noted above, in Stegall v. West, 11 Vet. App. 268, 271
(1998), the Court held that compliance with remand
instructions is neither optional nor discretionary. Where
the remand orders of the Board are not complied with, the
Board errs as a matter of law when it fails to ensure
compliance.
The Board's March 2005 remand requested that a VA medical
nexus opinion be obtained as to the nature and etiology of
the veteran's spina bifida. The examiner was asked to
determine if the veteran's spina bifida is
considered a congenital condition that by its
nature predated service? If the spina bifida is
considered a congenital condition, does the
medical evidence pertinent to service and after
service show that the veteran's spina bifida
worsened during service or as a result of
service? Does the medical evidence indicate that
the veteran's spina bifida has worsened as a
result of any service-connected disabilities?
With respect to the veteran's increased rating claim,
the examiner was asked to
distinguish to the extent possible, those
symptoms that are attributable to spina bifida
or other nonservice-connected conditions from
those attributable to service-connected
conditions. If such distinction is not
possible, please so state.
Although VA medical nexus opinions were obtained in January
2008 in response to the Board's remand, the report of such
examination did not answer these questions posed by the
Board.
Because the opinions of the January 2008 VA examiner are not
probative regarding the relationship between spina bifida
and service and the distinction between the service-
connected lumbar spine disorder and other non service-
connected spine problems, additional medical opinions
addressing these questions are needed.
Accordingly, these issues are REMANDED to the Veterans
Benefits Administration (VBA) for the following actions:
1. VBA should arrange for the veteran's
claims folder to be reviewed by a physician
with appropriate expertise. A copy of this
REMAND should be provided to the reviewing
physician. The reviewing physician should
render an opinion as to: (1) whether the
veteran's spina bifida is considered a
congenital condition that by its nature
predated service.
(2) If the spina bifida is considered a
congenital condition, does the medical
evidence pertinent to service and after
service show that the veteran's spina bifida
worsened during service or as a result of
service? (3) Does the medical evidence
indicate that the veteran's spina bifida has
worsened as a result of any service-connected
disabilities?
The examiner is also asked to (4) distinguish
to the extent possible, those symptoms that
are attributable to spina bifida or other
nonservice-connected lumbar spine conditions
from those attributable to the service-
connected lumbar spine disorder. If such
distinction is not possible, please so state.
If physical examination of the veteran and/or
diagnostic testing is deemed to be necessary
by the examiner, such should be scheduled.
The opinion should be associated with the
veteran's VA claims folder.
2. After undertaking any additional
development deemed by it to be appropriate,
VBA should then readjudicate the veteran's
claims of entitlement to service connection
for spina bifida and entitlement to an
increased disability rating for the service-
connected lumbar spine disorder. If the
benefits sought on appeal remain denied, in
whole or in part, VBA should provide the
veteran with a SSOC and allow an appropriate
period of time for response. The case should
then be returned to the Board for further
consideration, if otherwise in order.
The veteran has the right to submit additional evidence and
argument on the matters the Board has remanded. See
Kutscherousky v. West, 12 Vet. App. 369 (1999).
These claims must be afforded expeditious treatment. The law
requires that all claims that are remanded by the Board for
additional development or other appropriate action must be
handled in an expeditious manner. See 38 U.S.C.A. §§ 5109B,
7112 (West Supp. 2008).
______________________________________________
Barry F. Bohan
Veterans Law Judge, Board of Veterans' Appeals
Department of Veterans Affairs